What Do I Need to Know About Non-Marital Agreements?

Key Takeaways

A non-marital agreement gives unmarried NJ partners marriage-like rights, including support (palimony).
Any support promise must be a signed writing; since Moynihan (2022), attorney review is optional.

There are many people in today’s day and age who choose not to get married and simply prefer to live with their partner. However, this arrangement does not provide the same legal benefits that marriage does. It is because of this that there are certain steps that should be taken in order to ensure that people who choose to spend their lives together outside of marriage can have legal rights to one another. This can be done with a non-marital agreement. A non-marital or cohabitation agreement lets unmarried partners in New Jersey create guidelines regarding financial rights, property division, and support that would be provided in marriage. In order to ensure the agreement is enforceable, promises of ongoing support (palimony) must be written and signed by the individual making the promise, in accordance with N.J.S.A 25:1-5(h). When facing these situations, it is important to retain the services of an experienced New Jersey family law attorney for assistance.

What Does a Non-Marital Agreement Do?

There are a variety of functions that a non-marital agreement serves. It is because of this that they are helpful documents for those who wish to stay unmarried. Some of the benefits that this agreement can provide can include the following:

Both parties can establish one another as their power of attorney
Both partners have the authority to make health care decisions for each other in the event that one is unable to do so for themselves
Both partners can make advance health care directive decisions. This can include whether or not they want life-sustaining treatment, if applicable.
Both partners can include one another in their life or health insurance policies

What Is Palimony, and How Is It Different?

A non-marital agreement may address palimony, or financial support following a breakup. As unmarried couples do not have automatic rights to seek alimony like married couples have, this is often one of the most important aspects of a non-marital agreement.

Support versus property: Palimony is a promise from one party to financially support the other. Similarly, a broader cohabitation agreement may divide jointly owned property and determine powers of attorney and healthcare rights.
No support without an agreement: Unlike legally married couples, those in New Jersey who are not married are typically unable to seek support following a breakup unless there is a valid, written agreement that states otherwise.

Is My Agreement Valid?

When a non-marital agreement is being drafted, it is important to know that it must meet several qualifications in order for it to be considered valid. In the event that it is not valid, it cannot be enforced by the court if necessary. The qualifications for a non-marital agreement in New Jersey can include the following:

Under N.J.S.A. 25:1-5(h), any promise of support must be in a written agreement signed by the party to be charged, because oral palimony promises made after 2010 are not enforceable.
Both parties must state that there was no manipulation, coercion, or threat by either party to sign the document
All property included in the cohabitation agreement must be fully disclosed and correctly valued. This can include homes, cars, etc.
Both parties must state that they have had a reasonable amount of time to consider both the benefits and implications of the non-marital agreement before signing the document

While a non-marital document is legally enforceable, it is not the final word once it is created. If both partners want to revise the document later on, they are able to do so.

Do We Each Need Our Own Attorney?

Prior laws have required that both parties obtain independent legal advice before entering into a palimony agreement, though these laws have recently changed.

Attorney review is no longer mandatory: In Moynihan v. Lynch, 250 N.J. 60 (2022), the New Jersey Supreme Court struck down the attorney-review requirement of N.J.S.A. 25:1-5(h) as an unconstitutional restriction on the right to enter an agreement without compelled attorney participation.
Writing and signature still required: Non-marital agreements still require the document to be written and signed. The only aspect of the law that has changed is the requirement that each party obtain mandatory legal counsel.
Still strongly advisable: Even though it is no longer required, having each partner independently review the agreement with their own attorney protects both parties from later claims of overreaching or misunderstanding.